Deeter v. Burk
| Decision Date | 22 December 1914 |
| Docket Number | 8,864 |
| Parties | DEETER, ADMINISTRATOR, v. BURK |
| Court | Indiana Appellate Court |
Rehearing denied April 22, 1915. Transfer denied June 24 1915.
From Montgomery Circuit Court; Jere West, Judge.
Action by Clyde D. Burk on a claim against the estate of Elizabeth Deeter, deceased. From a judgment for plaintiff, the administrator of said estate appeals.
Affirmed.
Clyde H. Jones, M. W. Bruner and Charles R. Milford for appellant.
Thomas & Foley, for appellee.
This action is based on the following claim filed with the clerk of the Montgomery Circuit Court on August 1, 1912:
This claim, not being allowed by the administrator, was transferred to the trial docket of the circuit court of said county, where, without further pleadings being filed in the case, it was submitted to a jury for trial. The entire evidence and proceedings at the trial, as disclosed by the transcript, are in substance as follows: Michael S. Deeter, a witness for the claimant, testified that he was a brother of decedent and was acquainted with her handwriting. The claimant's attorney then placed in the hands of the witness the note, a copy of which is set out above in the claim, and asked the witness, whether he saw decedent write her signature thereto and the witness answered, on October 4. On cross-examination the witness stated again that he saw "decedent sign her name" to the note; that at the time she signed it, he (witness) and decedent were alone in the sitting room of decedent's home; that possibly one of his daughters might have been about the premises, but if so she was out at the time. Allen M. Deeter, a witness for claimant, testified that he was a brother of decedent, and acquainted with her signature, and after examining the note said that the name signed thereto was the signature of decedent. The note was then offered in evidence, and to its introduction the appellant objected on the ground that it had "not been shown to have been properly executed". This objection was overruled and the note was read in evidence, whereupon appellee rested his case.
The appellant then moved the court to instruct the jury to return a verdict in his favor "for the reason that plaintiff had not introduced sufficient evidence to make a prima facie case". This motion was overruled and the defendant rested. Appellee then recalled Allen M. Deeter for further examination, whereupon the appellant objected to appellee offering any further evidence after both he and the appellant had rested their case. This objection was overruled and the witness testified that his sister, the decedent, died February 16, 1912. Thereupon appellee again rested his case, and (we copy from appellant's bill of exceptions No. 2, set out in the record) A motion for new trial filed by appellant was overruled and judgment rendered on the verdict. From this judgment appellant appeals and assigns as error each of the rulings of the court above indicated on the respective motions of appellant and appellee for a peremptory instruction, and also, the ruling on the motion for a new trial.
Any error in giving or refusing to give a peremptory instruction is ground for new trial and hence is not ground for an independent assignment of error. Bane v. Keefer (1899), 152 Ind. 544, 53 N.E. 834; United States, etc., Ins. Co. v. Batt (1912), 49 Ind.App. 277, 281, 97 N.E. 195; Chicago, etc., R. Co. v. Richards (1901), 28 Ind.App. 46, 59, 61 N.E. 18. However, each of the rulings on said respective motions of the parties for a peremptory instruction, as well as all other rulings during the progress of the trial, above indicated, were properly excepted to at the time and were properly presented to the trial court for review by appellant as grounds of his motion for new trial. Such motion, in addition to such grounds, contained the further grounds that the verdict is not sustained by sufficient evidence and is contrary to law. Most, if not all, of the grounds of this motion relied on for reversal, in their last analysis, present the same question, viz., Did the trial court err in peremptorily instructing the jury to return a verdict for appellee? It should be remarked, however, that the disposition of this question involves the consideration of the question of the sufficiency of the evidence to sustain the verdict. However, before we reach the latter question, we must first determine whether, in view of the issues presented, the action of the trial court, under any view of the evidence introduced, can be upheld.
In cases of claims against decedents' estates, where, as in this case, no pleadings are filed by the administrator, the statute puts in all defenses except that of set-off and counterclaim. § 2842 Burns 1914, Acts 1883 p. 156; Schele v. Wagner (1904), 163 Ind. 20, 24, 25, 71 N.E. 127, and cases cited; Digan v. Mandel (1907), 167 Ind. 586, 594, 79 N.E. 899, 119 Am. St. 515, and cases cited. It follows that in the instant case the defense of "non est factum" was in by virtue of such statute, and this defense put on appellee the burden of proving the execution of the note. It is contended by appellant that, in view of the fact that this burden was on appellee and that the evidence in support of such execution was in fact, and of necessity, verbal, that a peremptory instruction could in no event be proper or justified under the decisions of both this and the Supreme Court. This court had occasion to consider this question in the recent case of Lyons v. City of New Albany (1913), 54 Ind.App. 416, 103 N.E. 20, and we there collected and cited the authorities that seemingly support appellant's contention as well as some of those which indicate that a peremptory instruction is proper and may be given in favor of the party having the burden of proof where the evidence, whether oral or documentary, is of such a character as to permit but one inference to be drawn therefrom, such inference being in favor of the person on whom rests the burden of proof. See also, Collins v. Catholic Order, etc. (1909), 43 Ind.App. 549, 88 N.E. 87; Baker v. Bundy (1913), 55 Ind.App. 272, 103 N.E. 668, and cases cited.
The cases above cited on which appellant relies proceed on the theory that the Constitution gives to the litigants in cases triable by jury the right to have the credibility of the witnesses and the weight to be given their testimony determined by a jury, and hence that the court can not take away that right and itself exercise it in favor of the party on whom rests the burden of proof. However, in the instant case we do not feel that we are required to determine whether the law is as appellant contends on this subject, because, we think, he is in no position to assert that the trial court deprived him of the right to a trial of his case by jury. The trial court did not give such peremptory instruction until it had been asked by each party to give such an instruction in his favor. The appellant first asked such an instruction, thereby expressly inviting and, indeed, asking the court in effect to take the case from the jury and decide it itself. This was the effect, and the only effect, his request could have, and, when appellee also indicated a similar desire and request in his favor, the court gave the instruction complained of by appellant. Under such circumstances both parties, thinking no doubt that the question to be determined was one of law rather than of fact, in effect, indicated to the court a desire to have it, rather than the jury, determine the case. Appellant at no time withdrew his request for an instruction in his favor, nor did he, after appellee had indicated a desire for an instruction in his (appellee's) favor, offer any objection on the ground that he...
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